Citation Nr: 0526370
Decision Date: 09/26/05 Archive Date: 10/05/05
DOCKET NO. 98-06 912A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Los
Angeles, California
THE ISSUE
Entitlement to an increased rating for residual scars for of
the left tibia, currently evaluated as 10 percent disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
T. Francesca Craft, Associate Counsel
INTRODUCTION
The veteran served on active duty from November 1978 to
November 1982.
This matter comes before the Board of Veterans' Appeals from
an August 1997 rating decision by the Department of Veterans
Affairs (VA) regional office (RO) in Los Angeles, California,
which denied among other claims, a compensable rating for
scars of the left tibia.
The Board previously reviewed the veteran's claim in a Board
Remand in December 1999 and a Board decision in July 2003,
which granted an increased rating of 10 percent for scars of
the left tibia, but no greater. The veteran appealed the
Board's July 2003 decision to the United States Court of
Appeals for Veterans Claims (Court), which subsequently
vacated that portion of the Board's decision that denied a
rating in excess of 10 percent. The Court in an August 2004
Order granted a Joint Motion for Remand, which moved for a
remand for consideration of the provisions of 38 C.F.R.
§ 4.118, Diagnostic Code 7804. In due course, the Board
remanded the appeal in November 2004 with instructions
pursuant to the Court's Order, to include a new VA physical
examination. A review of the record reveals that the RO has
completed the Remand's directives. Accordingly, the Board
may proceed with its appellate review. See Stegall v. West,
11 Vet. App. 268 (1998).
FINDINGS OF FACT
1. The veteran has been adequately notified of all pertinent
laws and regulations and of the evidence necessary to
establish his claim for an increased evaluation for scars of
the left tibia; all reasonable development necessary for the
disposition of the appeal of these claims has been completed.
2. The veteran's service-connected scars of the left lower
leg or tibia are three in number, a circular scar measuring
10 mm by 8 mm, and two additional scars measuring 9 mm b 6
mm, and 9 mm by 2 mm.
3. The service-connected scars are located on the anterior
aspect of the left leg in close proximity to one another;
objective evidence shows the scars are superficial and fairly
nourished and are not manifested by repeated ulceration or
limitation of function of the left leg, and the preponderance
of the objective evidence is against a finding of pain or
tenderness of any of these scars.
4. The veteran's service-connected scars of the left tibia
have not been productive of an exceptional or unusual
disability picture with such related factors as frequent
periods of hospitalization or marked interference with
employment.
CONCLUSION OF LAW
The schedular criteria for a rating in excess of 10 percent
for scars of the left tibia have not been met. 38 U.S.C.A.
§§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159,
3.321, 4.1, 4.2, 4.3, 4.6, 4.7, 4.118, Diagnostic Codes 7802,
7804 (2004); § 4.118, Diagnostic Codes 7803, 7804 (prior to
August 30, 2002).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
VCAA
The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L.
No. 106-475, 114 Stat. 2096 (2000), codified at 38 U.S.C.A.
§§ 5102, 5103, 5103A, 5107 (West 2002), provides for, among
other things, notice and assistance to claimants under
certain circumstances. Final rules to implement the
provisions of the VCAA are codified as amended at 38 C.F.R.
§§ 3.102, 3.156(a), 3.159, 3.326(a); see also 66 Fed. Reg.
45,620 (August 29, 2001). These regulations state that the
provisions merely implement the VCAA and do not provide any
additional rights. 66 Fed. Reg. at 45,629. Accordingly, in
general where the record demonstrates that the statutory
mandates have been satisfied, the regulatory provisions
likewise are satisfied.
First, VA has a duty to notify the appellant of any
information and evidence needed to substantiate and complete
a claim. 38 U.S.C.A. §§ 5102, 5103; 38 C.F.R.
§ 3.159(b) (2004). Information means non-evidentiary facts,
such as the claimant's address and Social Security number or
the name and address of a medical care provider who may have
evidence pertinent to the claim. See 66 Fed. Reg. 45620,
45,630 (August 29, 2001); 38 C.F.R. § 3.159(a)(5) (2004).
Second, VA has a duty to assist the appellant in obtaining
evidence necessary to substantiate a claim. 38 U.S.C.A. §
5103A; 38 C.F.R. § 3.159(c) (2004).
The appellant filed his claim in February 1997 prior to the
enactment of the VCAA. The regulations issued to implement
the VCAA are expressly applicable to "any claim for benefits
received by VA on or after November 9, 2000, the VCAA's
enactment date, as well as to any claim filed before that
date, but not decided by VA as of that date." 66 Fed. Reg.
45,629 (Aug. 29, 2001). See also VAOPGCPREC 7-2003.
Therefore compliance with the VCAA is required.
The Board finds that VA's duties to the appellant under the
VCAA have been fulfilled. The Board concludes that the
discussions in the August 1997 rating decision, the March
1998 Statement of the Case (SOC), and Supplemental
Statements of the Case (SSOC) issued in January 2003 and May
2005, adequately informed the veteran of the information and
evidence needed to substantiate his claim. The Board
observes that the February 2003 SSOC informed the veteran of
the implementing regulations, including that VA would assist
him in obtaining government or private medical or employment
records, provided that he sufficiently identified the
records sought and submitted releases as necessary. The
Board finds that these documents show that the appellant was
notified of the evidence needed to substantiate his claim
for an extraschedular rating for psoriasis and the avenues
through which he might obtain such evidence, and of the
allocation of responsibilities between himself and VA in
obtaining such evidence. See Quartuccio v. Principi, 16
Vet. App. 183 (2002).
In this case, the veteran appealed an August 1997 rating
decision. Only after that rating action was promulgated,
did the RO, in January 2005, provide notice to the claimant
regarding what information and evidence must be submitted by
the claimant, what information and evidence will be obtained
by VA, and the need for the claimant to submit any evidence
in his possession that pertains to the claim. In Pelegrini
v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II, which
replaced the opinion in Pelegrini v. Principi, 17 Vet. App.
412 (2004)), the Court held that a VCAA notice must be
provided to a claimant before the "initial unfavorable
[agency of original jurisdiction (AOJ)] decision on a
service-connection claim." VCAA notice was not provided to
the veteran before the RO decision that is the subject of
this appeal. However, as noted above, the original RO
decision that is the subject of this appeal was entered
before the enactment of VCAA. Obviously, VA could not have
informed the veteran of law that did not yet exist.
Moreover, in Pelegrini II, the Court also made it clear that
where, as in this case, notice was not mandated at the time
of the initial RO decision, the RO did not err in not
providing such notice complying with 38 U.S.C.A. § 5103(a)
and 38 C.F.R. § 3.159(b)(1) because an initial RO decision
had already occurred. Also see VAOPGCPREC 7-2004.
The Board further notes that, in order to comply with
38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b), VCAA notice
must: (1) inform the claimant about the information and
evidence not of record that is necessary to substantiate the
claim; (2) inform the claimant about the information and
evidence that VA will seek to provide; (3) inform the
claimant about the information and evidence the claimant is
expected to provide; and (4) request or tell the claimant to
provide any evidence in the claimant's possession that
pertains to the claim, or something to the effect that the
claimant should "give us everything you've got pertaining
to your claim(s)." This new "fourth element" of the
notice requirement comes from the language of 38 C.F.R.
§ 3.159(b)(1). In this case, the January 2005 letter
includes all four elements. Satisfying the fourth element,
the letter advised, "If there is any other evidence or
information that you think will support your claim, please
let us know. If you have any evidence in your possession
that pertains to your claim, please send it to us."
VCAA only requires that the duty to notify is satisfied, and
that claimants be given the opportunity to submit
information and evidence in support of their claims. Once
this has been accomplished, all due process concerns have
been satisfied. See generally Sutton v. Brown, 9 Vet. App.
553 (1996); Bernard v. Brown, 4 Vet. App. 384 (1993). In
the case of the veteran's claim, because each of the four
content requirements of a VCAA notice has been fully
satisfied, any error in not providing a single notice to the
appellant covering all content requirements is harmless
error. Moreover, in a recent opinion, VA General Counsel
held that section 5103(a) does not require VA to seek
evidence from a claimant other than that identified by VA as
necessary to substantiate the claim. See VAOPGCPREC 1-2004.
VA also has a duty to assist the appellant in obtaining
evidence necessary to substantiate the claim. 38 U.S.C.A. §
5103A. VA has obtained all indicated medical records
available or expended reasonable efforts to do so. The VA
afforded the veteran thorough VA medical examinations, which
addressed the applicable rating criteria for the veteran's
service-connected scars of the left tibia.
Based on the foregoing, the Board finds that, in the
circumstances of the veteran's claim, any additional
development or notification would serve no useful purpose.
See Soyini, supra (strict adherence to requirements in the
law does not dictate an unquestioning, blind adherence in
the face of overwhelming evidence in support of the result
in a particular case; such adherence would result in
unnecessarily imposing additional burdens on VA with no
benefit flowing to the claimant); Sabonis v. Brown, 6 Vet.
App. 426, 430 (1994) (remands which would only result in
unnecessarily imposing additional burdens on VA with no
benefit flowing to the claimant are to be avoided); Wensch
v. Principi, 15 Vet. App. 362, 368 (2001) (when there is
extensive factual development in a case, reflected both in
the record on appeal and the Board's decision, which
indicates no reasonable possibility that any further
assistance would aid the appellant in substantiating his
claim, the VCAA does not apply). The Board finds that the
duty to assist and duty to notify provisions of the VCAA
have been fulfilled to the extent possible with regard to
his claim. Thus, no additional assistance or notification
to the appellant is required based on the facts of the
instant case, there has been no prejudice to the appellant
that would warrant a remand, and his procedural rights have
not been abridged. Bernard, supra; see also Mayfield v.
Nicholson, 19 Vet. App. 103 (2005).
FACTUAL BACKGROUND
The veteran underwent a VA fee-basis physical examination in
August 2000, which included a review of the veteran's medical
history and his medical records. Current complaints included
constant swelling and constant tenderness with exacerbation
of symptoms during periods of increased activity, such as
physical exercise. On examination the veteran had two small
scars on the anterior tibia, approximately 5 mm (millimeters)
and one scar over the middle third of the left anterior
tibial area. There was a fourth scar, approximately 6 mm in
diameter, located on the extensor surface of the tibia on the
posterior surface. (see Analysis for discussion of this
nonservice-connected scar.) All of the scars were soft, dark
in color, and oval in shape with regular borders. The scars
were slightly depressed and there was mild tenderness over
surface of the scars with no evidence of adherence. There
was no evidence of major underlying tissue loss or
disfigurement, limitation of function, ulceration, breakdown,
or inflammation. There was some keloid present especially on
the anterior scars, but no major keloid formation. The
veteran did not use any devices for ambulation. The
diagnosis was status post MVA (motor vehicle accident)
resulting in left tibia injury with residual non-disfiguring
scars.
VA outpatient records dated from June 1998 to April 2005 are
negative for complaints of pain and swelling in the left
lower extremity other than in June 2001 and in November 2002.
In June 2001, the veteran complained of tenderness and
swelling in his left leg with prolonged standing. The
treatment record indicates there was a cluster of
varicosities in the medial aspect of the left ankle that was
causing the symptoms. The veteran underwent a stab
phlebotomy and removal of the varicosity in the left lower
leg to alleviate the symptoms. In November 2002, the veteran
complained of swelling when he stands for long periods of
time. On examination of the extremities there were varicose
veins and trace edema. The veteran reported that he wears
compression stockings on his left leg.
The veteran underwent a VA compensation and pension physical
examination (C&P examination) for scars in April 2005. The
examiner noted initially that he reviewed the claims file and
the veteran's medical records at the Long Beach Healthcare
facility. The veteran reported a medical history of
involvement in a motorcycle-car collision, in which he
incurred three puncture wounds. He stated that he had an
infection and was treated with antibiotics, daily dressings,
and reduced activity. The veteran stated his current
complaints regarding the scars are pain, discomfort, and
swelling with prolonged standing and walking. On examination
the veteran walked into the examination room without any
assistive device. There were three scars on the anterior
left leg. The first two scars were mid leg and measured 10
mm X 8 mm circular and 9 mm X 6 mm. The third scar was
slightly above the other two and measured 9 mm X 2 mm with an
oval shape. All three scars were dark colored and had
slightly irregular borders. There was no evidence of
underlying tissue loss, pain on examination, infection,
inflammation, ulcer, or skin breakdown. The lower scars were
fairly nourished and presented no limitation of function.
The veteran also had a scar on the posterior left leg, which,
according to the veteran, he incurred in 1994 when a
superficial blot clot was surgically removed. The examiner
concluded that the three scars on the surface of the anterior
tibia have no pain or limitation with the veteran's function.
The examiner opined that the veteran's complaint of pain and
swelling was more likely than not caused by his varicose
veins, and were less likely than not caused by the scars on
the surface of the tibia.
LAW AND REGULATIONS
Disability ratings are based on schedular requirements that
reflect the average impairment of earning capacity occasioned
by the current level of disability. Separate diagnostic
codes identify the various disabilities. 38 U.S.C.A. § 1155;
38 C.F.R. §4.1. To determine the current level of
impairment, the disability must be evaluated in the context
of the entire recorded history, including service medical
records. 38 C.F.R. § 4.2. The determination of whether an
increased evaluation is warranted is based on review of the
entire evidence of record and the application of all
pertinent regulations. See Schafrath v. Derwinski, 1 Vet.
App. 589 (1991).
The veteran's scars of the left tibia are currently evaluated
as 38 C.F.R. § 4.118, Diagnostic Code 7804 (Superficial scars
painful on examination).
During the pendency of this appeal, the regulations for
evaluation of skin disabilities were revised, effective on
August 30, 2002. 67 Fed. Reg. 49590 (July 31, 2002). When
amended regulations expressly state an effective date and do
not include any provision for retroactive applicability,
application of the revised regulations prior to the stated
effective date is precluded. 38 U.S.C.A. § 5110(g); Kuzma v.
Principi, 341 F.3d 1327 (Fed. Cir. 2003); DeSousa v. Gober,
10 Vet. App. 461, 467 (1997); VAOPGCPREC 3-2000; see also 67
Fed. Reg. 49590. Therefore, as each set of amendments
discussed above has a specified effective date without
provision for retroactive application, neither set of
amendments may be applied prior to its effective date.
However, as of those effective dates, there is nothing in the
applicable law and regulations, to include the cited legal
authority that precludes the Board from applying whichever
version of the rating criteria is more favorable to the
veteran. Therefore, the Board will address (1) whether, for
the entire period of time at issue, the veteran is entitled
to a compensable rating under the old criteria and (2)
whether, for the period on and after August 30, 2002, the
veteran is entitled to a higher rating under either the old
or the new criteria.
Under the old criteria, a 10 percent disability evaluation
was warranted for a scar which was superficial, poorly
nourished, with repeated ulceration. 38 C.F.R.
§ 4.118, Diagnostic Codes 7803 (2002). Ten percent was also
assigned for a scar that is superficial, tender, and painful
on objective demonstration. 38 C.F.R.
§ 4.118, Diagnostic Codes 7804 (2002).
Under the new criteria, effective August 30, 2002, a 10
percent disability evaluation is warranted for scars, other
than head, face or neck, that are superficial and that do not
cause limited motion, covering an area or areas of 144 square
inches or greater, or for scars that are superficial and
unstable, or for scars that are superficial and painful on
examination.
Scars in widely separated areas, as on two or more
extremities or on anterior and posterior surfaces of
extremities or trunk, will be separately rated and combined
in accordance with § 4.25 of Part IV. 38 C.F.R. § 4.118,
Diagnostic Code 7802, Note 1 (2004).
A superficial scar is one not associated with underlying soft
tissue damage. 38 C.F.R. § 4.118, Diagnostic Codes 7802-
7804, Note 2 (2004).
Once the evidence is assembled, the Secretary is responsible
for determining whether the preponderance of the evidence is
against the claim. See Gilbert v. Derwinski, 1 Vet. App. 49,
55 (1990). If so, the claim is denied; if the evidence is in
support of the claim, it is allowed. Id.
38 C.F.R. § 3.321(b)(1) provides that, in exceptional
circumstances, where the schedular evaluations are found to
be inadequate, the veteran may be awarded a rating higher
than that encompassed by the schedular criteria, as shown by
evidence showing that the disability at issue causes marked
interference with employment, or has in the past or continues
to require frequent periods of hospitalization rendering
impractical the use of the regular schedular standards.
38 C.F.R. § 3.321 (2004).
ANALYSIS
The record does not support a rating in excess of 10 percent
for the veteran's service-connected scars of the left lower
leg or tibia.
The Board notes initially that the veteran's scars of the
left leg are all located on the anterior aspect of the tibia.
The veteran disclosed during the April 2005 C&P examination
that he incurred a scar on the posterior aspect of the tibia
as a result of having a superficial blood clot surgically
removed in 1994. Service connection is not in effect for
this scar, which is clearly due to a post-service vascular
event. A review of the record confirms this medical history,
as records from UCI Medical Center show that in June 1994,
the veteran underwent a Linton procedure on his left leg and
excision of a venous tumor of the popliteal fossa. The
Report of Operation indicates a transverse three-inch
incision was made to remove a three-inch in diameter mass in
the popliteal space. Consequently, the record establishes no
more than three service connected scars on the left tibia,
which are all located in close proximity to one another on
the anterior surface. Accordingly, the veteran's scars of
the left tibia do not warrant separate ratings with combining
in accordance with § 4.25 of Part IV. See 38 C.F.R. § 4.118,
Diagnostic Code 7802, Note 1.
Objective evidence derived from the August 2000 and April
2005 VA examinations demonstrates that the scars are
superficial and fairly nourished without repeated ulceration
or limitation of function of the left tibia. The former
examination indicated that there was mild tenderness of the
three anterior left leg scars at issue, whereas the April
2005 VA examiner opined that the veteran's subjective
complaints of pain and swelling from his service-connected
scars was more likely than not caused by nonservice connected
varicose vein(s). VA outpatient records bolster the latter
examiner's opinion, in that the records are negative for any
complaint or findings of limitation of function, pain,
swelling, or tenderness of the left lower extremity that were
attributed to the service-connected scars of the left tibia.
Rather, the only complaint of pain and swelling in the left
lower extremity was associated with a cluster of varicosities
in the left ankle. The Board finds that the April 2005 VA
examination findings are more consistent with the treatment
records and, when considered together, make for a
preponderance of the evidence against the claim of pain or
tenderness supported by objective findings. Aside from the
fact that different clinicians most recent VA examiner and
treatment clinicians in the out-patient clinic records) came
to the same conclusion, it is clear in both cases that
alternative explanations for the veteran's leg pain was
provided and the veteran has in fact received treatment for
varicose veins, to include surgery and support stockings.
The veteran's assertion that he has pain, swelling, and
limitation of function as a result of his service-connected
scars of the left tibia versus underlying vascular disease
does not constitute competent evidence and therefore, has no
probative value. See Gowen v. Derwinski, 3 Vet. App. 286,
288 (1992) (As causative factors of a disease amount to a
medical question; only a physician's opinion would be
competent evidence.); see also Layno v. Brown, 6 Vet. App.
465 (1994) (A claimant's statements as to nexus are entitled
to no probative weight.)
The Board considered evaluation under the revised criteria of
7801 (Scars other than head, face, or neck that are deep or
that cause limited motion), which provides for a maximum
schedular rating of 40 percent. However, objective evidence
indicates that the service-connected scars of the left tibia
are not deep; on the contrary, they have been consistently
reported as not associated with underlying soft tissue
damage, to include upon the 2000 and 2005 VA examinations.
The size of the scars, 10 by 8, 9 by 6 and 9 by 2 mm, is no
where near what is required for a compensable rating: 144
square inches. See Diagnostic code 7802 (2004). The Board
finds that in the absence of any competent evidence of deep
scars, repeated ulceration, limitation of function of the
left tibia, or scars covering a much larger area, and with
the preponderance of the evidence against a finding of
tenderness or pain supported by any objective finding, such
as palpation to the scar, a rating in excess of 10 percent is
not warranted for the three small scars on the anterior left
lower leg. And for the aforementioned reasons, a separate
rating is not warranted for a scar on the posterior aspect of
the left leg as it is not service-connected. That is, the
medical evidence clearly shows that this latter scar is due
to nonservice-connected surgery for vascular disease.
As the preponderance of the evidence is against the claim,
the doctrine of reasonable doubt is not applicable and the
appeal must be denied. 38 U.S.C.A. § 5107; See also,
generally, Gilbert v. Derwinski, 1 Vet. App. 49 (1990);
Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001).
The evidence presents no record of extraordinary factors,
such that the service-connected scars of the left tibia have
markedly interfered with the veteran's employment or have
required frequent hospitalizations. In the absence of such
factors, the Board is not required to discuss any further the
possible application of 38 C.F.R. § 3.321(b)(1) for any of
these disabilities. See Bagwell v. Brown, 9 Vet. App. 337
(1996); Floyd v. Brown, 9 Vet. App. 88 (1996); Shipwash v.
Brown, 8 Vet. App. 218, 227 (1995).
ORDER
A rating in excess of 10 percent for scars of the left tibia
is denied.
____________________________________________
R. F. WILLIAMS
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs